ADVERSE ACTION PROPOSALS AND APPEALS
What do I Need to Know about Adverse Action Appeals?
The vast majority of the appeals filed with the Merit Systems Protection Board (MSPB) are of agencies’ decisions to take adverse actions (such as removals, demotions, and suspensions of more than 14 days) against federal employees. If your agency has taken an adverse action against you, The Federal Practice Group will be in your corner to fight for your career and your reputation.
In an adverse action appeal at the MSPB, the agency – not the employee- bears the burden of proof. The agency’s particular burden of proof depends on whether the agency took the action because of misconduct charges pursuant to 5 U.S.C. Chapter 75 (which can also include the charge of unacceptable performance) or whether the agency took a performance based action pursuant to 5 U.S.C. Chapter 43 (which typically follows the employee’s placement on a Performance Improvement Plan (PIP)).
What to Know About Misconduct Cases
- Agency Must Prove Charge(s): If your agency has taken an adverse action against you because of allegations of misconduct, the proposal to take the adverse action will identify the specific charges against you (e.g., lack of candor, insubordination, failure to follow leave policy, etc.). At the MSPB, the agency must establish by a preponderance of the evidence that the employee committed the misconduct as alleged in the proposal. Each charge has a burden of proof that the MSPB will use to determine whether the Agency proved its charge of misconduct.
- Action Must Promote the Efficiency of the Service: The agency must also establish that the adverse action it took against the employee “promotes the efficiency of the service.” This means there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest.
- Penalty Must be Reasonable: Finally, the agency bears the burden of establishing that its chosen penalty is reasonable in light of the Douglas factors, i.e., in light of any mitigating evidence such as length of service, performance on the job, and potential for rehabilitation.
What to Know About Performance Based Actions
- Placement on a PIP: If your agency places you on a Performance Improvement Plan, or PIP, and then takes an adverse action against you, it is most likely a performance based action, otherwise referred to as a “Chapter 43” action, which has a different burden of proof than cases where the employee is charged with misconduct.
- Agency Must Have Approved Appraisal System: To meet its burden, the agency must establish by substantial evidence that its performance appraisal system was approved by the Office of Personnel Management (OPM)
- Valid Performance Standards: To meet its burden, the agency must establish by substantial evidence that its performance standards were valid. This is an often complicated analysis.
- Unacceptable Performance: To meet its burden, the agency must establish by substantial evidence that it’s the employee’s performance was deficient as charged, and is unacceptable as defined by the performance standards (meaning is must fail to meet the minimally satisfactory standard).
- Opportunity to Improve: To meet its burden, the agency must establish by substantial evidence that it provided the employee with a reasonable opportunity to demonstrate acceptable This typically requires the supervisor to meet regularly with the employee during the PIP.
- Douglas Factors Do Not Apply: The Agency is not requires to perform a Douglas factor analysis to take a performance based action, nor to consider any mitigating evidence.